Short life working group and reference group: FOI release

Information requested

Information regarding the "short life working group" in the press release:
1. A copy of any document which sets out any of the following: how the membership of this working group was decided; how applications for membership of the group were advertised; who applied to be part of the group; who was rejected; and what mechanism exists for organisations or individuals to join the working group.

2. A copy of all minutes of the group.

3. The organisation or individual responsible for co-ordinating and organising the working group, and who provides secretarial duties for the group.

Furthermore, the press release identifies a "reference group". For this reference group, I request the following information:
1. The names of the individuals or organisations that comprise the reference group.

2. A copy of any document which sets out any of the following: how the membership of this reference group was decided; how applications for membership of the reference group were advertised; who has applied to be part of the reference group; who has been rejected membership; and what mechanism exists for individuals or organisations join this reference group.

3. A list of all meetings, including planned future meetings whether a specific date has been set or not, of this reference group; furthermore, I request minutes of all meetings that have occurred.

4. The organisation or individual responsible for co-ordinating and organising the reference group, and who provides secretarial duties for the group.

Response

Short Life Working Group (SLWG)
1&2. Applications to join the working group were not advertised or received. As with the creation of other stakeholder working groups, we invited members to join the group based on our knowledge of relevant stakeholders to include - drawing on previous stakeholder engagement. The organisations represented on the short life working group can be found here: Progress on tackling prostitution - gov.scot (www.gov.scot).

With regards to your question on what mechanism exists for organisations / individuals to join the working group, the membership for the short-life working group has been finalised – the group has 3 further meetings, following which the draft principles will be consulted on, we expect this to take place during early 2022.

I hope this is helpful in outlining how the group’s membership was drawn together. We are unable to provide some information you have requested on the design of the group, as part of its establishment, because an exemptions under sections s.29(1)(a) (policy formulation) and s.30(b)(i) (free and frank provision of advice) of FOISA apply to that information. The reasons why these exemptions apply are explained in the Annex.

3. Section 27(1) allows public authorities to refuse to disclose information if they already plan to publish it within the next 12 weeks, but only if it is reasonable to delay disclosing the information until the planned date of publication. Once finalised, all minutes from the group will be published on the Scottish Government website (please see link here) – this is expected to take place in January 2022.

4. The Scottish Government Violence Against Women and Girls Justice team provide the secretariat for the group.

Reference Group
1. The Reference Group membership contains individuals from the following groups/ organisations:

• A Model for Scotland
• Zero Tolerance
• A Third Sector academic
• Scot-pep
• NHS
• Cross-Party Group on Commercial Sexual Exploitation
• Scottish Government officials representing policy interests relevant to the work of the SLWG.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption under s.38(1)(b) (personal information) of FOISA applies to part of this information. Further explanation can be found within the Annex.

2. Applications to join the working group were not advertised or received. As with the creation of other stakeholder working groups, we invited members to join the group based on our knowledge of relevant stakeholders to include - based on previous stakeholder engagement.

We are unable to provide some information you have requested on the design of the reference group, as part of its establishment, because an exemptions under sections s.29(1)(a) (policy formulation) and s.30(b) (i) (free and frank provision of advice) of FOISA apply to that information. The reasons why these exemptions apply are explained in the Annex.

3. Recognising the range of interests and experience, the SLWG’s work will be informed by the reference group. The reference group will be kept updated on the SLWG’s progress, along with opportunities to input into its work, by e-mail. The reference group does not meet in person.

4. The Scottish Government Violence Against Women and Girls Justice team provide the secretariat for the reference group.

Annex
REASONS FOR NOT PROVIDING INFORMATION

The Scottish Government does not have the information you have asked for because exemptions apply.

Exemption undersection s.29(1)(a) (formulation or development of Scottish Government policy) of FOISA applies to some of the information you have requested. Information withheld relates to the formulation of the SLWG and Reference Group.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.

However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications.

Their candour in doing so will be affected by their assessment of whether the discussions will be disclosed in the near future, and this may undermine or constrain the Government’s view on that policy whilst it is still under discussion and consideration.

Exemptions under s.30(b)(i) (free and frank provision of advice) of FOISA apply to some of the information you have requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers and other officials before the Scottish Government reaches a settled public view.

This exemption is also subject to the ‘public interest test’. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers and other officials as part of the process Government policy.

This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, on a sensitive area of policy.

Exemption under s.27(1) (information intended for future publication) of FOISA allows public authorities to refuse to disclose information if they already plan to publish it within the next 12 weeks, but only if it is reasonable to delay disclosing the information until the planned date of publication. Once finalised, all minutes from the group will be published on the Scottish Government website – this is expected to take place in January 2022.

Exemption under Section 38 (personal information) of FOISA contains four exemptions, all relating to personal information. Information is exempt from disclosure if it is:

• the personal data of the person requesting the information (section 38(1)(a));
• the personal data of a third party – but only if other conditions apply (section 38(1)(b));
• personal census information (section 38(1)(c)); or
• a deceased person's health record (section 38(1)(d)).

The exemptions in sections 38(1)(a) and (b) regulate the relationship between FOISA, the UK General Data Protection Regulation and the Data Protection Act 2018. Processing of personal data must be fair as well as lawful, so fairness needs to be considered separately. Guidance issued by the ICO in relation to the UK GDPR states that fairness means public authorities should only handle personal data in ways that people would reasonably expect and not use it in ways that have unjustified adverse effects on them.

Public authorities should therefore take the following into account:

• Whether the individual expects their role to be subject to public scrutiny. Consideration should be given to the person’s seniority, whether they have a public profile and whether their role requires a significant level of personal judgement and individual responsibility.
• Whether the individual expects their role to be subject to public scrutiny. Consideration should be given to the person’s seniority, whether they have a public profile and whether their role requires a significant level of personal judgement and individual responsibility.
• Any express refusal by the data subject;
• Whether the information relates to the data subject’s public or private life. A person’s private life is likely to deserve more protection.

The majority of members within the reference group represent organisations. However, the group contains individuals who are not associated with organisations. Therefore, to protect those individuals from unexpected public scrutiny and potential distress or damage caused by disclosure, it is considered that the exemption, detailed above, is applicable in these circumstances.

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